Governor Edwards announced that funding will be made available to study why the 33% of  Louisiana’s African American population account for nearly 60% of COVID-19 deaths.  Over 400 of those deaths were residents of Louisiana nursing homes and long-term care facilities. The Governor declared a state of emergency to fight the new coronavirus and that declaration may impact common questions regarding duty of care and negligence.  Due to the lack of knowledge of foreseeable danger related to the deadly transmission of COVID-19, staff may have been unaware of the plethora of negative health outcomes possible, even if they were following pandemic and isolation protocols that are mandatory in Center for Medicare and Medicaid certified facilities.  If protocols were not followed and they endangered residents, there may be issues of liability for negligence or unintentional neglect.

 Law.

In U.S. Tort Law, negligence can be compensated if someone acted carelessly to a foreseeable harm, or failed to act at all, resulting in loss, injury or death to another person.  In order to prove negligence in a personal injury wrongful death case, the elements of duty, breach of duty, actual cause, proximate cause and tangible damages must be present. When extenuating circumstances impact the actions that led to harm, each case will need to be carefully analyzed by professionals considering the circumstances resulting in Louisiana nursing home deaths.

Immunity.

As more coronavirus lawsuits are initiated, arguments will begin as to what negligence is defined as,  during this unprecedented event  impacting healthcare delivery standards. There is no current blanket immunity for all U.S. nursing homes and it would be a slippery slope action to grant it across the board, since some facilities have fallen short of mandated industry standards. If someone died at a long term care facility, or nursing home, because they were not isolated from sick individuals, a degree of  responsibility may fall onto the facility. Seeking consultation with an experienced attorney about the case is advised.

Negligence.

Nursing home abuse claims include acts of negligence that cause, or exacerbate existing health conditions or place residents in danger. Determinations will need to be made regarding any violations of the Nursing Home Reform Act (NHRA) of 1987, but taking into consideration the public health emergency and the overriding laws of the state during a disaster event.  Deviations from facility cleanliness, staff hygiene and administrative infectious disease protocols could place a resident at risk and may be considered acts of unintentional negligence.

Wrongful death.

Louisiana wrongful death legal actions address the death of a person resulting from an injury inflicted by the negligence or wrongful act of another. The statute of limitations for wrongful death claims in Louisiana is one year from the date of the decedent’s death in most cases.  An experienced attorney can help navigate the way the laws will be interpreted for families suffering losses due to COVID-19 illnesses in Louisiana nursing homes.

Sources.

Nursing Home Reform Act (NHRA) of 1987

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